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2018 (5) TMI 1682 - AT - CustomsLevy of CVD - import of “Customised Software” - denial of benefit under Notification No. 6/2006-Central Excise dated 01.03.2006 to “Customised Software” produced by the appellant - difference between “Packaged” software and “Customised Software” Held that:- In all the “Packaged Software” no rights such as copyright, trade mark or any other intellectual property rights, patent copy right etc. are transferred to the buyer. Similarly source code is also not transferred. The right to use “Packaged Software” is also a nonexclusive right. However just existence of these factors do not make any software “Packaged Software”. Even in the “Customised Software” by virtue of contract between parties that all the rights can be retained by the supplier of the software. Conclusion reached on this ground is not proper. Non-exclusive right to use the software - Held that:- Even in “Packaged” software the rights transferred, if any, are nonexclusive right to use the said software. Even in “Customised Software” it is possible that parties may agree to the same conditions. It is to the contracting party to decide the manner in which the right are to be transferred. These issues do not determine the nature of ‘software’. The difference between “Packaged” software and “Customised Software” has not been examined with respect to exact nature of the software of imported. The importer is claiming the benefit of exemption N/N. 6/2006-Central Excise dated 01.03.2006 - the matter remanded to the original Adjudicating Authority to examination all the documents submitted by the appellant and give a clear finding on the “Customised” or “Packaged” nature of software depending of the features of software itself and other data submitted by the importer - appeal allowed by way of remand.
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